Probation condition based on constructive knowledge element is not unconstitutionally vague. In exchange for dismissal of several burglary charges, appellant pled guilty to receipt of stolen property and was granted probation. On appeal he challenged several of his probation terms as vague and overbroad because they lacked an express scienter element or were based on a constructive knowledge element. Held: Affirmed as modified. Three of the challenged conditions included a constructive knowledge element. One concerned gang-gathering areas, another, that appellant not associate with certain people, such as gang members or drug users, and a third prohibited appellant from wearing or possessing gang paraphernalia. Each condition prohibited the activity based on facts appellant “knows or has reason to know.” A probation term which implicates the defendant’s freedom of association requires an explicit mental element. But due process does not require that the condition provide for actual versus constructive knowledge. The California Supreme Court in In re Sheena K. (2007) 40 Cal.4th 875, found a condition prohibiting the minor from associating with anyone disapproved of by the probation officer vague without an express knowledge requirement. However, cases since Sheena K. have added a constructive knowledge requirement to eliminate vagueness of a probation condition. Further, constructive knowledge has been upheld in penal statutes. Thus the “reason to know” language is not unconstitutionally vague.
Condition that prohibits possession of firearms, ammunition, or deadly/dangerous weapons has the same implicit scienter requirements as the statutes it implements and need not set forth an express knowledge requirement. One of appellant’s terms prohibited him from possessing firearms, ammunition, or deadly/dangerous weapons. “Probation conditions may be classified according to their purposes.” Some reinforce penal provisions the defendant may be at risk of violating. Others seek to keep the defendant away from circumstances that may lead to criminal behavior. As a convicted felon, appellant is prohibited from possessing guns or ammunition. Just like penal provisions that prohibit such possession, the probation terms prohibiting appellant’s possession of guns or ammunition contain implicit scienter requirements.
A scienter element is reasonably implicit in a probation condition that prohibits the use or possession of alcohol, intoxicants, or controlled substances. Cases interpreting the California Uniform Controlled Substances Act have construed these statutes as including an implicit knowledge requirement. To the extent this condition reinforces appellant’s obligations under the controlled substances laws, the same implicit knowledge requirement exists in his probation conditions prohibiting such possession, i.e., knowing possession of a restricted substance. To the extent the condition is not limited to prohibited substances, such as alcohol, the court added an express knowledge requirement to eliminate any vagueness problems.